By Vusi Mona
A number of red herrings were dragged into SANRAL’s application to keep certain aspects of the Winelands Toll project confidential at this stage. This has clouded the real issues at stake and contributed nothing to a greater public understanding of the tender and bid processes.
The ruling by the Western Cape High Court brought much-needed clarity on an issue, helped to dispel some of the untruths and half-truths spread about SANRAL and corrected the most glaring misconceptions.
The decision by the City of Cape Town to apply for leave to appeal does not change SANRAL’s position. Obviously, as a responsible corporate citizen we abide by the outcome of the judicial processes. This is an approach which is in stark contrast to many of our critics who often encourage the public to defy court rulings and the country’s laws.
An appeal hearing will provide SANRAL with another opportunity to refute the often repeated accusation that it engaged in a secret tender process and intends to withhold information from the public. This is then equated with the so-called “Secrecy Bill” and a doomsday scenario is painted of a future South Africa where citizens will have no access to information that is in the possession of the state.
Such an approach demonstrates a lamentable lack of understanding about tender processes and fails to distinguish between the concepts of “confidentiality” and “secrecy.” Unfortunately, this appears to be a strategy employed by our opponents to deliberately create confusion in the minds of the public.
The High Court now ruled that no person will be permitted to, unless authorised by SANRAL or the Court, to disseminate, publish or distribute any part of the administrative record.
It confirmed the argument advanced by SANRAL that papers filed by parties to any litigation should only be available to parties and persons who have a direct legal interest in the matter.
What is at issue is that SANRAL has a legislative mandate to maintain and upgrade the national road network in South Africa. In this process SANRAL implements national policies and legislation which have, for more than 20 years, included provisions for tolling.
Recognising the substantial constraints on the national fiscus government introduced tolling as a funding mechanism to ensure the ongoing maintenance and upgrading of national roads in a manner which is both cost effective and ensures the best value for money for South African citizens.
In the Western Cape there is already tolling in place at the Huguenot Tunnel. The City of Cape Town has its own tolling initiative at Chapman’s Peak – all under this legislation.
Thus, it was not a new concept for South Africa, or the Western Cape, when SANRAL commenced the tender process for the tolling of sections of the N1 and N2, better known as the Winelands Route. In line with normal tendering processes SANRAL invited companies and consortiums to submit competitive bids for this project.
The tender bids are by definition confidential. Bidding companies provide confidential commercial information including their engineering and construction plans, their allocation of legal and financial risks and, in this case, their intended toll fee structure. This is the information used by SANRAL to reach a decision on the successful bidder, to shortlist candidates, or to negotiate better terms and conditions.
It is important to note that when the initial action was launched by the City, the process had reached a stage where a preferred bidder had been identified by SANRAL following a comprehensive technical evaluation of the different submissions. The tender has not yet been awarded.
As the recipient of this sensitive information SANRAL has a solemn duty to keep it confidential. To disclose it prematurely would be a gross dereliction by SANRAL and put all future bidding processes at risk. It would have a ripple effect on the integrity, not only of SANRAL, but of all state agencies and organs at national, provincial and local government levels.
Why would any commercial company trust SANRAL, or a government department, or even the City of Cape Town, if there is a possibility that sensitive information will be divulged to competitors before a final tender has been awarded?
It was therefore, we believe, exceptionally irresponsible of the City of Cape Town to launch such an application in court, knowing full well that a judgement in its favour might blow up in its own face in time to come.
The Western Cape High Court ruling was a landmark judgement with implications for the disclosure of any administrative records in the future and is especially relevant for future challenges against state institutions during tender processes. We are confident that this ruling will be confirmed by other courts should leave for appeal be granted.
SANRAL is committed to transparency and fully supports the right of the public to have access to information pertaining to our business and our decisions. Our position has got nothing to do with secrecy but is only intended to ensure the integrity of a competitive bidding process which is currently at a sensitive stage. We will make full disclosure of information pertaining to the Winelands toll tender once the final tenders have been awarded.
*Vusi Mona heads communication at SANRAL.